[Avodah] Halachic Texts: More Background

[Richard Wolpoe]

On Fri, Jul 4, 2008 at 2:04 PM, Rich, Joel <JRich at sibson.com> wrote:

>
> So let's go back further. Who decided on general klalim of psak(e.g. R'
> Judah versus Rabbi Meir and Rabbi Shimon).  Why weren't these on a case by
> case basis?
> KT
> Joel Rich
>
>
Thsi is long, so beware!


Most Klalei p'saq were created by Babylonian Ga'onim
I don't mean to get overly "Wissenshafty" here but I am convinced that -
like many things in hisotry - something created for ONE purpose morphed into
anonther [or well else is new!]

What do I mean?

AISI, the Bavli was a first rate Encyclopaedic resource for Torah Sheb'al
Peh. [TSBP]
But it morphed.  The Saboraim and the bGa'onim - for whatever reason -
decided to make the Bavli into a Code like a Shulchan Aruch.  They
apparently gave the BeHaG a really hard time for trying to make a spearate
Halachah sefer -and that might gor for Sh'iltos, too.

Aat any rate, IN BAVEL, works like the Sh'iltos. Halchos Gedolos, Halachos
P'sukkos were pretty much ignored.  People not only STUDIED bavli - they
lived it. There was a vialbe Beis Midrash constaining all the collective
Talmudic data and wisdom

But in Europe,[and probably in North Africa] those 2ndary sources became
primary texts.  The Bavli - imho - never really succeed as a "CODE" because
the Rif, Rambam, Tur et. al. felt the need to compose other codes.  The
Rambam's hakdamah probably gives you the aboslute necesity for writing a
code outside the Talmud.  The Talmud was really a closed book in many ways.

Rashi and Tsoafos re-opened it to a great extent- that is another matter.
The klalei p'saq are so widely ignored at times it is  difficult to apply.
Example, Rav & Shmuel Halacha keRav be'issurim, But Kiddush bimkom s'udah
Halach KiShmuel. {I know why but I will not digress]

My point is that the rules themselves need rules to know how to apply the
rules in the first place.

There are consistent schools of p'sq tht DO work.  And the one that really
comes to mind most often is simply consensus.  It works from Tanur Achinai
right down to 3 matzos at the seder.  It simply works consistently across
the board.  I have asked two prominent RAbbonim in Teaneeck and they BOTH
gave me that is their primary method for Halachic decision making. It might
take months but I can prove to you that the Beis Yosef and the Rema BOTH
used this method and were givenoverwhelming approval for following it.

The resistors [rebels?] included Bach, Meharshal and others who were pretty
much out of hte main stream.  The problem I have is that Masorti use the
Meharshal as their "mentor" to manufacture brand new Halacha from the Talmud
and to ignore Posqim.  That is one of my MAIN problems with that
methodology, it is a slippery slope open to high levels of abuse. Most RWO
who DO defend it say you nee to be a 'bar hachi" to do this - so that The
GRA, RMF, the Meharshal are allowed but not others.  Im kein nasatta
devorecha leshi'uirim. You can then surrender ALL hope of any obejctive
Halachic system and have different sets of trules for different levels of
Posqim and if you are a real genius you nene not follow ANY precedent.  This
goes squarely against the thrust of Tanur Achinai where Rabbi E.lizer
hagadol's Gadlus was humbled by the lesser lights [sheds of Liiliput?] who
claimed that nimnu v'gamru trumps genius and ruach haqodesh.

There are some other methods that sort of work, too. E.g Minhag Avos or
Minhag hamaqom. So evern though the VAST majority of communites do not bury
on 2nd Day of YT [with or w/o relying upon RMF in IM] the fact isthat Satmar
and Breuer's still follows minhag Avos and DO bury on YT sheini.   So a
longstanding continuous precedent is not always uprooted by consensus,
rather it gets grandfathered in despite conesnsus.

Thus when Teimanim accepted Rambam, [I Have been informed that] they
maintained about 40+ exexmptions. IOW they granfathered in some Minhag
Avos.  Simlarly when Medieval Asheknaz accepted Bavli they grnadfathere in
many of their practices,, too.  The Ba'alei Tosafos preserved those
traditions.

Later on, it morphed again. once Bavli became Supreme, the Grandfathered
Minhaggim came under attack.  But I can bet that in Teiman they did NOT
surrender their grandfathered Minhaggim.  The difference is that in Ashkenaz
it split.  for the most part, Eastern Europeans were only too happy to come
up with the newest and latest version of litrugy, etc.  The Western
Europeans and Obberlander Hungarians stood firm on Minhag Avos and - by and
large - did not accept "hiddush" as anything but shinuy if itmeant
overthrowing longstanding Minhag Avos.  Aruch Hashulchan is one of the
excpetional Litvaks that allied hismelf more with Minhag Avos.

Eastern Europeans who were under the sway of the Gra, Mussar, Hassidsus or
Qabbalah had little resistance to chagne. Even Hassidim from Wien and
Oberland di nto abandon Nusach Ashkenaz.  If you are not a Yekke or Duth or
Oberland, you probably do not get this.

Students in Litvisher Yeshivos come back t oBreuer's and many cannto fathomm
how it follows nusach knegged teh Mishna Brurah. This is not a Halachic
shortcoming, just a pedagogical one. People are not trained to understand
how that can work.

FWIW, I noted before, A main Temani Haggadah [The name slips my memory]
objected strongly to RY Karo's SA schnging the Teimani Minhag and they
endorsed the Rema's steadfastness in resistance this "steamrller" effect. By
and large, medieval ASheknz was hihgly respectful of Minhag Hamakom and a
Jew from say Magnenza did not dare to impose his Minhag in say Fuerth.  They
all knew better.

The Rambam, et.al. was very much into imposing his version on other
communitie. He felt that his read of TSBP in general and Bavli in particular
was superiror and therefore he had little problem in telling others to
change. But see the Haqdkama of BY for a different approach.


-- 
Kol Tuv / Best Regards,
RabbiRichWolpoe at Gmail.com
see: http://nishmablog.blogspot.com/
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